in litigation, but several judgments are rele- 

 vant. They concern themselves with the mean- 

 ing of that section of the law granting the Sec- 

 retary power to make rules and regulations to 

 prevent destruction and depredation of the 

 forests. One court contended that there was a 

 separation of powers in this section, stating 

 that the "grant of the power to regulate use 

 and occupancy is in addition and independent 

 of the power to issue rules and regulations to 

 preserve the forests from destruction." 17 The 

 separation of powers interpretation has not al- 

 ways been maintained, but the courts have 

 consistently upheld the power of the Secre- 

 tary to establish rules controlling the use of 

 the forests, and some rulings, dealing with the 

 legality of such uses as livestock grazing on 

 the forest, leave open the possibility that pri- 

 orities were in fact established among uses. 

 The 1911 Supreme Court case of United 

 States v. Grimaud™ is an example. 



Restating the position taken by the lower 

 courts, the Supreme Court held that "to pas- 

 ture sheep and cattle on the (forest) reserva- 

 tion, at will and without restraint might inter- 

 fere seriously with the accomplishment of the 

 purpose for which they were established. But 

 a limited, regulated use for pasturage might 

 not be inconsistent with the object sought to 

 be attained by the statute." The Court's find- 

 ing, together with later decisions described 

 below, has led some writers to claim that graz- 

 ing is placed in a position subordinate to the 

 purposes for which the forests were estab- 

 lished (McCloskey 1961, passim). 



In the 1912 case of United States v. 

 Henrylin Irrigation Co., 19 the court stated 

 that the forest reserves had been created for a 

 special purpose. Although the court failed to 



17 United States v. Reeves, 39 F. Supp. 580 (W.D. 

 Ark., 1941), 583. See Bayles (1964), p. 113 ff., for a 

 discussion of changing interpretations within the For- 

 est Service, especially with respect to rules and regula- 

 tions concerning ingress and egress on the National 

 Forests. 



18 220 U.S. 506, quotation at 516. The Govern- 

 ment brief in the McMichael case, discussed below, 

 used the Grimaud case to support its contention of 

 power to issue regulations on resources beyond those 

 enumerated in the 1897 Act. 



19 205 Fed. 970, 972 (D. Cal. 1912) 



spell out just what that purpose was, it found 

 the Act of 1897 did not allow for any use or 

 occupancy that interfered with the purposes 

 of such reserves, thus implicitly, if not direct- 

 ly, upholding the decision in the Grimaud 

 case. 



Evidence of priorities as viewed by the 

 courts came in 1922 when the court declared 

 that favorable conditions of waterflow held 

 precedence over grazing that might lead to 

 erosion and floods. 20 A 1941 case held graz- 

 ing to be subordinated to "furnishing a con- 

 tinuous supply of timber" where replanted 

 acreage is involved. 21 This position was reaf- 

 firmed in 1944 when the court stated that the 

 Forest Service "may exclude grazing entirely 

 or regulate it appropriately to the benefit 

 of . . . (the) . . . natural growth" of timber. 22 



A direct interpretation of the priority 

 problem came in the 1952 case of United 

 States v. Perko. Using the Act of 1897 as 

 authority, the court stated ". . . the purpose 

 of establishing a Forest Reserve under the 

 statute is to conserve the timber and water 

 flowage .... The use of the forest for recrea- 

 tional purposes is incidental to this main pur- 

 pose" (108 F. Supp. at 322). 



Given the economic situation in the first 

 half of the century as it pertained to the de- 

 mands that were being made upon the forests, 

 it is not surprising that the courts emphasized 

 timber and water. As conditions changed over 

 time, court interpretations gave way to broad- 

 er concerns. Moreover, all of the earlier cases 

 made a direct reference to purposes for which 

 the National Forests were established. 



The problem of whether or not regulation 

 of use and occupancy is separate from protec- 

 tive regulation is thus a source of contention. 

 It is the view of this study that although the 

 two sections of the act seem to be giving dif- 

 ferent instructions or direction, they have to 

 be considered in pari materia: that is, the stat- 

 ute must be so interpreted as to give meaning 



20 United Stales v. Gurley, 297 Fed. 874 (N.D. Ga. 

 1922). 



2, United Slates v. Johnston, 38 F. Supp. 4 (D.W. 

 Va. 1941). 



22 Osborne v. United States, 145 F. 2d 892 (9th 

 Cir., 1944). 



15 



